Reaugh v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 03 February 1920
• Docket Number: No. 15540.,15540.
• Citation: 218 S.W. 947
• Court: Missouri Court of Appeals
• Parties: REAUGH v. ATCHISON, T. & S. F. RY. CO.

218 S.W. 947

REAUGH v. ATCHISON, T. & S. F. RY. CO.

No. 15540.

St. Louis Court of Appeals. Missouri.

February 3, 1920.

Appeal from Circuit Court, Knox County; Charles D. Stewart, Judge.

"Not to be officially published."

Suit by Amanda Reaugh against the Atchison, Topeka & Santa Fe Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. J. Mersereau, T. R. Morrow, and J. H. Lathrop, all of Kansas City, L. F. Cotty, of Edina, and Conkling & Withers, of Carrollton, for appellant.

F. H. McCullough, of Edina, for respondent.

BARNES, C.

This suit originated in the circuit court of Knox county. Verdict and judgment in the sum of $375 was had for plaintiff. Appellant has waived all points, save that the amended petition does not state a cause of action, and that its demurrer, offered at the close of all the evidence in the case, should have been sustained.

The third amended petition, after alleging that defendant is a foreign corporation owning and operating a railroad through Knox county, Mo., alleges in substance that plaintiff is the owner of a tract of valuable improved farming lands in said county, containing about 46 acres, and that defendant's right of way intersects plaintiff's farm, entering the same on the west side thereof, and then curving and passing through the land in a northeasterly direction, leaving about 30 acres of said land on the south and east sides thereof; that for many years there has been a public road along the west side of plaintiff's farm, extending in a north and south direction, crossing defendant's right of way at the point where the latter intersects the west line of plaintiff's land; that at this point defendant has constructed and maintains on its right of way a "high, strong, and wide embankment of earth and material" on which it operates its double railroad track, and that at said point, and for a long distance east and west thereof, the railroad embankment is about 10 feet higher than the lands of plaintiff, which are on the south and east sides of the right of way, and that the general trend and slope of plaintiff's said lands, and of the lands adjoining the same, is in an easterly direction; that in about the year 1910 defendant negligently constructed a public road crossing on its right of way at the point where said public road crosses the same, by putting up a solid high wall or embankment of earth and material, without any opening therein, which extends south from defendant's railroad embankment, on said public road, to the south line of defendant's right of way, and thereby forms a solid, high, and strong dam, through which water cannot pass or flow along defendant's right of way; and that about the year 1910 the defendant also negligently constructed a drainage ditch, about 10 feet in depth and 20 feet in width, on its right of way at the south side of its said railroad embankment, which ditch commences at said public road crossing and extends to the west on and along defendant's right of way to a point at about a quarter of a mile west of the west line of plaintiff's farm, at which last-named point said ditch opens into and connects with a natural water course, a stream of running water known as" Long Branch, which flows in an easterly direction, and that thereby a portion of the waters of said stream were and are diverted from their usual channel, and caused to flow in a new direction through said drainage ditch and over the lands of plaintiff in a body; that at a point of about 700 feet west of said road crossing defendant has placed a large drain tile under its said roadbed on its right of way, about 5 feet in diameter, connecting with said drainage ditch, and that the surplus waters are thereby gathered from the lands lying west of plaintiff's farm and added to the portion of the water from said water course or stream, diverted from their natural channel as aforesaid, and the same are discharged upon the lands of plaintiff that the said waters so gathered and discharged across the lands of plaintiff, on the south and east sides of defendant's right of way, have washed away and destroyed about 20 acres of plaintiff's land and greatly damaged the remainder thereof, by washing away the soil therefrom, etc.; and that, on account of the said unlawful and negligent acts of defendant, plaintiff has been deprived of the use of her farm lands for the seasons of 1911 to 1916, inclusive, and her farm has been damaged and reduced in value, all to plaintiff's damage in the sum of $1,999, for which she prays judgment.

The assignment of error pertaining to the petition is that it did not allege that an opening under said embankment would have saved plaintiff's land from flooding. There is no merit in this contention, for the reason that the petition charges a diversion of waters from the water course, by a carelessly and negligently constructed drainage ditch and a negligently and carelessly constructed road crossing, by a solid embankment at the crossing of the public highway over the railroad, thereby preventing the flow of water along defendant's right of way and directing the water over the lands of plaintiff, and designating said embankment as the cause of said diverted waters flowing through the plaintiff's lands. Munkers v. K. O., St. J. & C. B. R. Co., 60 Mo. 334; Mangold v. St. L., etc., R. R. Co., 24 Mo. App. 52; Gray V. Schriber, 58 Mo. App. 178; Gottenstroetter v. Kapplemann, 88 Mo. App. 449.

There was...